Legal Reasoning Questions for CLAT | QB Set 46

Protective homes under the Immoral Traffic (Prevention) Act, 1956, (PITA) are meant to function as a measure of rehabilitation, not confinement. Clarifying this, the Bombay High Court last week (January 16) set aside orders that had placed an adult trafficking survivor in a protective home for one year, holding that such custody, in the absence of legal justification, violates constitutional liberty. Justice N J Jamadar said that where a victim is a major, placing her in a protective home should “have been determined on the touchstone of the constitutional rights of personal liberty and fundamental freedom”. These rights under Article 19 stand on a higher footing than statutory powers under PITA. They do not stand suspended merely because a person has been trafficked.

The matter pertained to five women who were rescued during a police raid from a lodge in Yeola, Maharashtra, followed by the arrest of two men under PITA. While other women were allowed to leave with their family members, the magistrate ordered that the petitioner be placed in the detention home as she had no family or steady source of income. It was assumed that, considering her circumstances, she was likely to return to commercial sex work and therefore required institutional “care and protection” under the PITA.

What the law permits after rescue

PITA provides a framework for custody after a rescue under Section 17. Immediately after a raid, a person may be kept safe in custody for a short period if they cannot be produced before the appropriate magistrate. This initial custody is capped at 10 days. Once the person is produced before the magistrate, the law mandates an inquiry. During this period, interim custody can continue but only upto 3 weeks. A longer placement, anywhere between 1–3 years, can only be ordered after the magistrate records a finding that the person is “in need of care and protection”.

The Bombay HC noted that these timelines are not procedural formalities but a reflection of the legislative intent to ensure that rescue does not turn into confinement. For adults, any extension of this custody beyond these narrow limitations must pass constitutional scrutiny.

The Act draws a statutory distinction between protective homes and corrective institutions. While Section 2(g) deals with “protective homes” meant for victims requiring care and rehabilitation, Section 2(b) defines a “corrective institution” as one where persons “in need of correction” may be detained. Detention in a corrective institution is specifically governed by Section 10A, which applies to offenders found guilty of certain offences under the Act.

For children, the law permits wider intervention, with the State stepping in as a guardian. For adults, Article 19 — to move freely, reside where one chooses and pursue a livelihood — does not stand suspended merely because a person has been trafficked. As a result, “care” for an adult might be voluntary. Once an adult expresses a clear wish to leave a protective home, continuing to confine them ceases to be care and becomes a detention. In the present case, the woman repeatedly stated that she did not wish to remain in the institution; the HC held that her consent was not optional but central.

How courts distinguish care from detention

The distinction, the court said, lies not in labels but in effect. Care involves support measures that respect autonomy, counselling, shelter offered with consent and assistance in rebuilding life outside exploitative settings. Detention, on the other hand, is marked by compulsion. When an adult is kept in a protective home against her wishes with restrictions on movement and choice, the state must justify the restraint on liberty with concrete reasons.

“When an adult is kept in a protective home against her wish,” the court noted, “the restraint on personal liberty must be justified on the basis of material placed on record.”

The bench cautioned against treating victims as offenders by default. The PITA, the court said, “was not meant to punish a victim of sexual exploitation”. In the absence of material showing that the victim’s conduct attracted any penal provision, she could not be subjected to restrictions “on the basis of a bald assertion that the victim may again indulge in immoral acts”.

Under the Act, it is the magistrate who must determine, after conducting an inquiry, whether a rescued person requires care and protection. Only upon such satisfaction can a magistrate pass an order directing placement in a protective home, subject to the safeguards built into the provision.

Detention may be justified where there is evidence that the person suffers from a condition that impairs decision-making, or where release would pose a demonstrable danger to society. Another situation is where the person is also an accused in a criminal case. In this case, none of these elements were present. There was no medical material suggesting incapacity. There was no finding that her release would endanger others. She was not accused of any offence under PITA. The court rejected speculative fears, including the possibility that she might return to sex work, as insufficient to justify detention.

What the Act criminalises

PITA does not criminalise prostitution. What it targets is the commercial exploitation that surrounds it. Although the Act defines prostitution as sexual exploitation for commercial purposes, judges have clarified that this does not mean every person found in sex work is committing an offence, controlling or profiting from that exploitation. The focus of the law is the trade, not the individual caught within it.

This distinction runs through the Act. No provision punishes a person simply for engaging in prostitution. Instead, the offences are directed at brothel keepers, traffickers, and intermediaries. Managing a brothel, living off another person’s earnings or procuring someone for prostitution, even with apparent consent, attracts criminal liability. Detaining a person in a brothel or premises for sexual exploitation is treated as a serious offence.

There are limited situations where conduct linked to prostitution is punishable. This applies when it takes place near public places such as schools, hospitals or places of worship, or when a person is found soliciting in a public space. Courts have described these provisions as measures to protect public order rather than moral policing.

A central plank of the magistrate’s reasoning was the woman’s economic condition. The High Court rejected this approach. “The necessity of detention,” the court held, “ought to have been determined on the touchstone of constitutional rights of personal liberty and fundamental freedom.” The mere absence of a relative to take custody, or the fear that poverty may push a person back into sex work, could not justify confinement. Poverty, the court said, may require support, but it cannot be used to curtail liberty.

(Source: The Indian Express)

Question 1

During a police raid in Maharashtra, an adult woman was rescued from a lodge where illegal activities were suspected. Since she had no family support or stable income, the magistrate ordered her placement in a protective home for one year under the Immoral Traffic (Prevention) Act, 1956. The woman consistently expressed her desire to leave the institution.

In light of the Bombay High Court’s reasoning in the passage, which of the following is the most legally appropriate conclusion?

A. Detaining the woman without her consent violates her constitutional right to personal liberty.
B. The magistrate’s order is valid because protective homes exist for rehabilitation.
C. The woman can be detained indefinitely until she becomes financially independent.
D. Detention is justified because she may return to commercial sex work.

Answer: A

Question 2

After rescuing five women from a lodge, a magistrate allowed four of them to leave with family members but ordered one adult woman to remain in a protective home due to her poverty and lack of guardians. No inquiry was conducted to determine whether she required care and protection.

Based on the passage, which factor is most crucial before ordering long-term placement in a protective home?

A. The woman’s past involvement in sex work
B. A judicial finding that she is in need of care and protection after inquiry
C. The absence of family members to take custody
D. The likelihood of her engaging in immoral activities again

Answer: B

Question 3

An adult trafficking survivor states clearly before the magistrate that she does not wish to stay in a protective home. There is no medical evidence of incapacity, and she is not accused of any offence.

According to the reasoning in the passage, continuing to keep her in the protective home would amount to:

A. Unconstitutional detention rather than care
B. Mandatory rehabilitation under statutory powers
C. A corrective measure justified by public interest
D. Lawful custody under Section 10A of PITA

Answer: A

Question 4

A magistrate justifies detaining an adult trafficking survivor in a protective home on the ground that her economic condition may push her back into sex work, even though she wishes to leave.

How would the Bombay High Court most likely assess this reasoning?

A. Poverty alone is a sufficient ground for restricting liberty.
B. Economic vulnerability automatically implies need for detention.
C. The fear of relapse into sex work overrides constitutional freedoms.
D. Poverty may require support but cannot justify confinement without legal grounds.

Answer: D

Question 5

A State authority argues that prostitution itself is an offence under the Immoral Traffic (Prevention) Act and therefore justifies detaining rescued adults in protective homes.

Which of the following best reflects the legal position explained in the passage?

A. Prostitution is fully criminalised under PITA.
B. Individuals engaged in sex work are offenders by default.
C. PITA targets commercial exploitation and not the individual victim.
D. Any adult found in a raid must be detained for public morality.

Answer: C